Named respondents liable even if employer is also found to be liable

Facts

Miss C Baldwin (CB) was employed by Cleves School (the school) as a newly qualified teacher (NQT) from September 2014 until CB’s resignation on March 18, 2015. Ms Miller was designated CB’s mentor. Mr Hodges was the headteacher of the school.

Because of ill health, at the time of accepting the role CB had not completed her postgraduate certificate in education (PGCE). CB had a number of absences during her first term at the school.

Employment Tribunal

CB resigned and brought claims for disability discrimination, victimisation and harassment against the school, Mr Hodges and Ms Miller. It was conceded that CB was disabled at the relevant time during her employment. The ET found the school was liable under s109 of the Equality Act 2010 (EA) for two acts of disability discrimination done by the Mr Hodges and Ms Miller.

One concerned an email from Ms Miller to Ms Sternstein, who was CB’s PGCE tutor.

There followed an exchange between Ms Miller and Ms Sternstein which the ET considered showed that the respondents were suspicious about whether CB had significant health issues which she had not disclosed to the school.

The other act concerned an NQT report on CB completed by Mr Hodges at the end of CB’s first term at the school. The report included a comment that CB had ‘not acted with integrity at all times’. The tribunal found there was insufficient evidence to support this view and it had not been raised with CB before.

The ET dismissed separate claims against the individual respondents brought under s110 EA, saying their acts were only ‘misguided attempts to address a complex situation’. The ET also dismissed CB’s other claims.

Employment Appeal Tribunal

CB appealed to the EAT. Initially she submitted six grounds of appeal, which were subsequently condensed into four grounds, one of which was withdrawn at the appeal hearing. The EAT considered three grounds of appeal.

The first ground claimed that the ET had erred in holding that the individual respondents were not liable for the acts of discrimination, and failed to consider s110 EA.

The EAT considered the wording of s110 EA as well as the history of the section in predecessor equality legislation.

S110 EA deals with the liability of employees and agents; it states as follows:

1) A person (A) contravenes this section if
a) A is an employee or agent,
b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A’s employer or principal ( F [2024] IRLR 637 as the case may be), and 
c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).

2) It does not matter whether, in any proceedings, the employer is found not to have contravened this Act by virtue of section 109(4).

3) A does not contravene this section if
a) A relies on a statement by the employer or principal that doing that thing is not
a contravention of this Act, and
b) it is reasonable for A to do so.

4) A person (B) commits an offence if B knowingly or recklessly makes a statement
mentioned in subsection (3)(a) which is false or misleading in a material respect.
....
6) Part 9 (enforcement) applies to a contravention of this section by A as if it were the contravention mentioned in subsection (1)(c).

The EAT noted that the school did not raise a defence under s109(4) EA with the consequence that acts of the individual respondents were treated as done by the school as their employer.

The EAT considered that there was no discretion in the wording of s110 EA which allowed the ET to refuse to find against individual respondents if the conditions in that section were met.

The EAT stated that it was implicit in the ET’s findings that the conditions in s110(1) EA applied; namely, the individual respondents were employees or agents of the school and their acts were treated as done by the school under s109(1). The EAT stated that the unavoidable result of this was a finding of a contravention of s110 by the individual respondents also.

In respect of the first ground, the EAT held that as, on a proper construction of s110, the ET had no discretion to find that the second and third respondents were not liable, the tribunal had erred. The EAT substituted a finding of a contravention of s110 EA by the individual respondents in respect of their acts for which the school was liable. It
noted that the situation might be different when it comes to remedy, and that an ET has discretion to split the responsibility to pay any award between respondents, not necessarily in equal proportions. The first ground of appeal was allowed.

CB’s second ground claimed that the ET had made a procedural irregularity because it used the wrong list of issues with the consequence that one of the protected acts relied on by CB was missed.

During the appeal hearing it became clear that the parties were mistaken and the protected act had been included in the list of issues considered by the ET. The EAT granted CB permission to amend this second ground. However it later emerged in subsequent correspondence with the ET panel that, although it had failed to deal with one of the complaints of victimisation in its written reasons, the tribunal had considered this issue and adequately explained to the EAT why it had not upheld that particular
complaint. The second ground of appeal was dismissed.

The third ground was a perversity challenge based on Mr Hodges’s email of November 13, 2014. CB said the only rational conclusion open to the ET in respect of this email, in light of its content, was that it had to amount to harassment.

Dismissing the third ground, the EAT stated it was not persuaded that the complaint was ever alleged as an act of harassment. Further, in any event the EAT did not consider the ground of appeal came close to the threshold for a perversity challenge. The EAT said it was far from clear that the email in question was ‘related to’ CB’s disability in any event. Even if it was, it could not be said that ‘the only possible conclusion was that the email had the purpose or effect of violating the Claimant’s dignity, or of creating an “intimidating, hostile, degrading, humiliating or offensive environment for her” - or that it was reasonable for it to do so.’

Implications for practitioners

This case is a good reminder for practitioners to advance a defence under s109(4) EA where possible and that named respondents cannot always be safe from liability merely because they were acting in the course of their employment.

This blog was first published in the Discrimination Law Association (DLA) Briefings in November 2024.

Further information

If you have any questions regarding this blog, please contact Daniel Zona in our Employment team.

About the author

Daniel Zona is an Associate in the Employment team. Daniel enjoys a broad and busy employment law practice, acting for employers and individuals on both contentious and non-contentious matters. Daniel has acted for clients in a wide range of industries and sectors, with particular experience of acting for those in regulated and professional spheres, including financial services, healthcare and legal.